State v. Lytle

• Citation: 177 Kan. 408,280 P.2d 924
• Decision Date: 05 March 1955
• Docket Number: No. 39379,39379
• Parties: STATE of Kansas, Appellee, v. Claude Lercy LYTLE, Appellant.
• Court: United States State Supreme Court of Kansas

Page 924

280 P.2d 924

177 Kan. 408

STATE of Kansas, Appellee, v. Claude Lercy LYTLE, Appellant.

No. 39379.

Supreme Court of Kansas.

March 5, 1955.

Syllabus by the Court.

1. Defendant caused dismembering of right hand and disfiguring of right arm of his divorced wife by shooting her with a

shotgun at close range, and it is held: (a) Defendant was properly charged under G.S.1949, 21-430 in the first count of the information and under G.S.1949, 21-431 in the second count of the information; (b) the intent was sufficiently charged in the information; and (c) the motion to quash was correctly overruled.

2. Prosecution may elect and trial court can require election of which charge is relied upon for conviction.

3. Trial court did not err in its rulings limiting voir dire examination, admitting evidence, or excluding evidence.

4. The record in this case in regard to instructions examined, and held: (1) There was no prejudicial error in including penalties, but such procedure is not recommended or sanctioned; (2) there was no prejudicial error in instructing on facts and circumstances from which intent may be found by the jury; (3) it is not necessary to instruct on assault and battery where there is no evidence to show such lesser degree and when it would, therefore, only confuse the jury; and (4) an instruction on self-defense need not be given where there is no evidence whatsoever to justify it.

Otto J. Koerner and George L. Adams, Wichita, argued the cause, and Benjamin F. Hegler, L. R. Meador, and John N. Stice, Wichita, were with them on the briefs, for appellant.

S. Jack Glaves, Deputy County Atty., and Roy L. Rogers, Spe. Prosecutor, Wichita, argued the cause, and Harold R. Fatzer, Atty. Gen., and Warner Moore, County Atty., were with them on the briefs, for appellee.

ROBB, Justice.

The appellant, Dlaude Leroy Lytle, appeals herein from a conviction of maiming his former wife, Evelyn C. Lytle, as a result of his culpable negligence in violation of G.S.1949, 21-435.

Appellant and Evelyn C. Lytle had been husband and wife since December 13, 1943. There were sons of the marriage but the number is not shown in the record. A divorce was granted to Evelyn C. Lytle on November 6, 1952. Evelyn C. Lytle, in company with Robert E. Blake in Blake's car on the night in question, December 13, 1952, was followed by appellant in his car. Blake drove his car into the driveway of the Medical Arts Building in the first block on North Minnesota in Wichita, Sedgwick county. Appellant parked his car across said driveway, blocking egress of the Blake car therefrom, went to the Blake car, and had some conversation with Blake regarding Blake's association with Evelyn C. Lytle and with the Lytle boys. Appellant returned to his car. Blake started his car and in an attempt to leave said driveway, the Blake car came in contact with the Lytle car at which time appellant again got out of his car, this time with a hammer type shotgun in his hand. Blake left the scene and went toward a filling station to call the police. Appellant walked around to the door on the side of the car where Mrs. Lytle was sitting. It is not clear from the record whether Mrs. Lytle voluntarily got out of the Blake car or was forced out by appellant but nevertheless she got out of the car and a struggle over the gun ensued, which resulted in the gun being discharged, and in maiming and disfiguring the right arm, and causing the loss of the right hand of Mrs. Lytle.

Appellant was arrested at 1:25 a. m. on December 14, 1952, by Roland P. Yergler of the Wichita Police Department. Appellant was in his car and offered no resistance. The shotgun (a single barrel Diamond-Arms hammer type gun), which had been used in the shooting, was lying in the front seat.

Appellant sets out eleven specifications of error. However, there are only three questions involved.

'1. Did the trial judge err in his ruling on the sufficiency of the information?

'2. Did the trial judge err in his rulings on the evidence?

'3. Did the trial judge err in giving instructions to the jury or in refusing to give defendant's requested instructions?'

The information (omitting the formal parts) charged in the first court as follows:

'* * * that in the County of Sedgwick and State of Kansas, and on or about the 13th day of December, A.D., 1952, one Claude Leroy Lytle did then and there unlawfully, feloniously, wilfully on purpose and of malice aforethought of him the said Claude Leroy Lytle, disable a limb, to-wit: the right arm of one Evelyn C. Lytle, with intent to kill, maim and disfigure the said Evelyn C. Lytle, by shooting at and hitting the said Evelyn C. Lytle, with gunshot pellets from a 12 gauge shot-gun, a single barrel, Diamond-Arms make, a further description of which the affiant is unable to give for the reason that she does not know the same; all of said acts then and there committed being intentional, unlawful, felonious and wilful. * * *' (Our emphasis.)

This charge was drawn under G.S.1949, 21-430, which reads in part as follows:

'Every person who shall, on purpose and of malice aforethought * * * cut off or disable any limb or member of any person, with intent to kill, maim or disfigure such person, shall upon conviction be punished by confinement and hard labor for a term not less than five nor exceeding ten years.' (Our emphasis.)

The information (omitting formal parts) in the second count charged as follows:

'* * * that in the County of Sedgwick and State of Kansas, and on or about the 13th day of December, A.D., 1952, one Claude Leroy Lytle did then and there unlawfully, feloniously, wilfully on purpose and with malice aforethought, shoot at and assault another, with a deadly weapon, to-wit: a 12 gauge shot-gun, single barrel, Diamond-Arms make, a further description of which this affiant is unable to give for the reason that she does not know the same, by a means of force likely to produce death or great bodily harm, with the intent in him, the said Claude Leroy, Lytle, to kill or maim one Evelyn C. Lytle, and did then and there unlawfully, feloniously, purposely, deliberately and with malice aforethought, shoot at and hit the said Evelyn C. Lytle with gun shot pellets from the aforesaid gun, thereby wounding and maiming the said Evelyn C. Lytle; all of said acts then and there committed being intentional, unlawful, felonious and wilful * * *.'

This charge was drawn under G.S.1949, 21-431, the pertinent part of which reads:

'Every person who shall, on purpose and of malice aforethought, shoot at * * * another * * * with intent to kill, maim * * * or in the attempt to commit any * * * other felony * * * shall be punished by confinement and hard labor for a term not exceeding ten years.'

Counsel for appellant attacked the information by timely motions to quash, abate and discharge (see Rice v. States, 3 Kan. 141; State v. Jessup, 42 Kan. 422, 22 P. 627; State v. Ashe, 44 Kan. 84, 24 P. 72; State v. Hupp, 154 Kan. 410, 118 P.2d 579) on the grounds there was no specific intent alleged and the allegations were in the conjunctive rather than in the disjunctive. The trial court properly overruled these motions for the reason that, in the first instance, a specific intent is clearly alleged in both counts. It must be remembered the common law required strict pleading on these matters but under our statutes this court has held that it is sufficient if words are used which convey the same meaning. See State v. White, 14 Kan. 538, 539; State v. Child, 42 Kan. 611, 614, 22 P. 721. This court has held in the case of State v. Douglas, 124 Kan. 482, 260 P. 655, that the use of 'and' might be preferable in the charging clause but the use of 'or' in the disjunctive is well within the rule if it follows the statute. It is sufficient to charge it in the language of the statute or in terms substantially equivalent thereto. G.S.1949, 62-1009; 24 C.J.S., Criminal Law, § 1896, p. 868, note 48.

At the close of the state's evidence, the trial court, upon motion of appellant's counsel, required the state to elect upon which count it would rely for prosecution and the state elected to rely on the first count. Therefore, the case was submitted to the jury on the first count and appellant was not prejudiced by the second count.

In the information the state properly charged the appellant in two counts and under the law it could rely for conviction on either of them. However, the trial court in correctly requiring the state to elect under the evidence left only the first count in the information. Claflin v. State, 154 Kan. 452, 455, 119 P.2d 540, and cases cited therein.

The second question deals primarily with rulings of the trial court on the allowance and exclusion of evidence and we have not overlooked objection on the part of appellant's counsel to rulings on voir dire examination of the jurors. The trial court had the counsel and the jury before it and the extent of the voir dire examination was within its sound discretion. Since there was no abuse of this discretion and no prejudice was shown, the rulings will not be disturbed. Swift & Co. v. Platte, 68 Kan. 1, 72...